Wisconsin’s Mining Laws
To better understand the regulatory process for permitting metallic mines in Wisconsin, it is best to understand what has changed with Wisconsin Act 134.
Currently, any company that proposes to mine for metallic minerals must obtain an exploration, prospecting or mining permit and any other permit, license, certification, or other approval that is required under the environmental and natural resources laws.
Mining Moratorium
Act 134 eliminated the mining moratorium, which was added to Wisconsin’s mining law in the late 1990’s for mines containing sulfide mineralization. Under that provision, a mining company seeking permits was required to submit to the Wisconsin Department of Natural Resources (DNR), evidence of a mine that had operated for at least 10 years without violating an environmental law, along with evidence of a mine that had been closed for at least 10 years without violating an environmental law. Under the previous law, a mining company could submit data from a mining operation in the desert of the southwest U.S. as evidence for a successful operation and mine closure. However, a mine operating in the dry desert region would provide little insight as to how to design and regulate a mine in the water resource rich environment of Wisconsin and would be of little value to the DNR.
In place of the mining moratorium, Act 134 included requirements that the mining company provide documentation to the WDNR that technology being proposed by the mining company is proven technology that will work in Wisconsin. This legislation maintained strong environmental standards without preempting local regulations or seeking exemptions from environmental standards that were currently in state law.
Bulk Sampling
Act 134 added a separate approval process for “bulk sampling,” and defined this activity as the removal of less than 10,000 tons of material to assess the quality and quantity of metallic mineral deposits and to collect and analyze data to prepare an application for a mining permit or other approval. Under this new provision, the bulk sampling process is permitted and regulated by the DNR.
The law requires a company that intends to conduct bulk sampling to file a bulk sampling plan with the DNR, along with providing information about the potential mining project. Methods used for bulk sampling, erosion control methods, description of any known adverse environmental, recreational or historic property impacts, and how those impacts will be avoided or minimized must be included in the plan. A company must also submit a plan for revegetation that describes how adverse environmental impacts will be avoided or minimized. Once a bulk sampling plan has been submitted, the WDNR issues the applicant a letter identifying what other approvals may be necessary in order to commence bulk sampling. In most cases, the department would also hold a public informational hearing on the bulk sampling plan, pre-application notification, and pre-application description.
A company must also submit a bond with the bulk sampling plan to ensure that the obligations of the mining company are completed. DNR determines the amount of the bond at a level that is adequate to fund the state’s cost for completing the revegetation plan if the company fails to do so.
Groundwater Protection Standards
The new law made no changes to the groundwater quality protection standards. All of the groundwater quality standards that applied to mining operations prior to the enactment of this legislation still apply to mining operations today.
Under previous law, for a metallic mining site, the Design Management Zone (DMZ), or compliance boundary, extends vertically from the land surface through all saturated geological formations. Act 134 granted authority to the DNR to determine how deep into the bedrock the DMZ extends. This authority was granted to the DNR by the legislature, due to the fact that deep bedrock in northern Wisconsin often has very low water permeability. This means that the rock does not transmit appreciable amounts of groundwater that can be monitored and the groundwater does not interact with important aquifers or surface waters
Wetlands
Act 134 requires mining operations to comply with the same state and federal wetland laws that other developers and industrial operations have to comply with. Under previous law, mining operations were subject to special wetland laws that were less stringent than generally applicable wetland laws.
Predictive Modeling
Under previous law, a mining company was required to submit engineering and hydrologic modeling analysis to evaluate if a mining waste facility would comply with groundwater and surface water quality standards. Under Act 134, this performance-based modeling analysis is still required. The new law requires that the period of time to be examined is 250 years after facility closure. Under previous law, there was no time limit on this examination period.
Mine Permit Application Timeline
Under the prior law, there was no timeline for the WDNR to issue an Environmental Impact Statement (EIS), the Mining Permit, and other environmental permits for a mining project. Under Act 134, the law now requires the DNR to follow a timeline for issuing an EIS and rendering a decision on the permits. The law also requires the DNR to coordinate the EIS with other relevant federal agencies and allows the DNR and applicant to set up an alternative timeline for the EIS and permitting process.
Hearing Process
Prior to the passage of Act 134, the DNR would issue a final EIS and a draft Mining Permit and other draft environmental permits required for the project. After issuance of the final EIS and draft permits, a master hearing was held including a contested case hearing and public information hearing. A final decision was rendered by the DNR after the master hearing.
Under the new law, the DNR still holds a public information hearing on the draft EIS and draft permits. This hearing is followed by the DNR’s decision to grant or deny the permits. Following the DNR’s decision on issuance of the permits, a person may request a contested case hearing. If a contested case hearing is requested, the hearing examiner must issue a decision within 270 days after the DNR approves or denies the permits.
Financial Assurance
Under previous law, a mining company was required to establish three types of financial assurance: a) a reclamation bond, b) a long-term care bond, and c) an irrevocable trust fund. This bill retains the reclamation bond and long-term care requirements and replaces the requirement for an irrevocable trust with a financial assurance requirement to cover foreseeable repairs and replacement of a waste facility cap and water management systems. The resulting financial assurance requirements under this law puts Wisconsin on an equal playing field with Michigan and Minnesota.